The borrower ("Borrower") applied for and received a "payday loan" through the lender's ("Lender") website. The Lender was wholly owned by a Native American tribe.

To complete the loan transaction, the Borrower was required to sign an agreement ("Agreement") containing a choice of law provision stating that tribal law would apply, and that "no other state or federal law or regulation shall apply." The Agreement further provided that any dispute would be resolved by arbitration in accordance with tribal law.

The Borrower subsequently filed a putative class action complaint alleging that the Lender and other tribal payday lenders had issued unlawful loans. However, instead of directly suing the Lender, the Borrower sued the financial institutions that facilitated the payday lending transactions over the ACH Network, including the defendant bank ("Bank").

In the trial court, the Bank sought to compel arbitration under the Agreement. Relying on the Fourth Circuit's ruling in Hayes v. Delbert Services Corp., 811 F.3d 666 (4th Cir. 2016), the trial court concluded that the Agreement was unenforceable, and denied the Bank's motion to compel arbitration.

On appeal, the Bank argued that the Agreement did not implicate the prospective waiver doctrine, and should be enforced because the Borrower failed to show that the choice of law provision would actually deprive him of any federal remedies. Moreover, the Bank argued that any ambiguities that may arise in application of the choice of law provision should be resolved by the arbitrator in the first instance.

The Borrower argued that the prospective waiver issue was ripe for review because there was no uncertainty regarding the effect of the choice of law provision as that provision effects an unambiguous and categorical waiver of federal statutory rights. Therefore, the Borrower argued that the choice of law provision was unenforceable under the Hayes decision.

Initially, you may recall that arbitration agreements are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. However, arbitration agreements that operate "as a prospective waiver of a party's right to pursue statutory remedies" are not enforceable because they are in violation of public policy.

Under the "prospective waiver" doctrine, courts will not enforce an arbitration agreement if doing so would prevent a litigant from vindicating federal substantive statutory rights.

In siding with the Borrower, the Fourth Circuit noted that the Agreement contained many of the same choice of law provisions it held were unenforceable in Hayes. In fact, the Court noted that the language related to the agreement to arbitrate was identical apart from the name of the designated tribe.

Thus, the Fourth Circuit held that "the above provisions in the [] Agreement are not distinguishable in substance from the related provisions in the [agreement] that we held unenforceable in Hayes."

Further, the Court held that "[t]he arbitration agreement in this case implicitly accomplishes what the [agreement in the Hayes case] explicitly stated, namely, that the arbitrator shall not allow for the application of any law other than tribal law." Thus, "[j]ust as we did in Hayes, we interpret these terms in the arbitration agreement as an unambiguous attempt to apply tribal law to the exclusion of federal and state law."

The Bank next argued in the alternative that the Court could "effectively sever the choice of law provisions from the arbitration agreement, and accept [the Bank's] concession to the application of federal substantive law in arbitration notwithstanding the unambiguous choice of tribal law in the arbitration agreement."

The Fourth Circuit disagreed, noting that the Bank "seeks to rewrite the unenforceable foreign choice of law provision in order to save the remainder of the arbitration agreement." However, "[b]ecause these choice of law provisions were essential to the purpose of the arbitration agreement, [the Bank's] consent to application of federal law would defeat the purpose of the arbitration agreement in its entirety."

Accordingly, the Fourth Circuit held that the entire arbitration agreement was unenforceable, and affirmed the ruling of the trial court.

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Friday, May 12, 2017

The U.S. Court of Appeals for the Ninth Circuit recently affirmed the Bankruptcy Appellate Panel's determination that a creditor's pre-bankruptcy, non-recourse lien on two debtors' real property is extinguished following a non-judicial foreclosure sale.

In April 2009, two debtors ("Debtors") purchased real property.Rather than fund the purchase price and payoff the two existing liens on the real property, the Debtors executed a wrap-around mortgage in favor of the property seller.The Debtors then funded the balance of the purchase price with a note ("Note") secured by a deed of trust.

In March 2010, the real property seller filed a Chapter 11 bankruptcy petition, which was later converted into a Chapter 7 bankruptcy proceeding.

In June 2012, the Debtors also filed a Chapter 11 bankruptcy petition.The trustee of the Seller's bankruptcy estate ("Trustee") timely filed a proof of claim for the two liens secured by the real property.

In October 2012, the bankruptcy court lifted the debtor's bankruptcy stay to allow the most senior lienholder to foreclose on the real property.The real property was sold at a foreclosure sale.The foreclosure trustee sent the surplus proceeds from the sale to the Trustee.The Trustee then filed an amended proof of claim for the unsecured balance of the Note.

The Debtors moved to disallow the amended claim on the ground that there was no longer any property in the estate on which there could be a recourse lien.The bankruptcy court agreed.

On appeal, the Bankruptcy Appellate Panel affirmed and held that the Seller's non-recourse claim could not be transformed into a recourse claim under 11 U.S.C. § 1111(b).The Bankruptcy Appellate Panel reasoned, "[a]lthough [the Trustee's] original proof of claim may have asserted a claim secured by liens on property of the estate, as recognized in the amended proof of claim [the Trustee] filed, those liens were eliminated as a matter of law as a result of the foreclosure."

As you may recall, 11 U.S.C. § 1111(b)(1)(A) provides in pertinent part:

A claim secured by a lien on property of the estate shall be allowed or disallowed under section 502 of this title the same as if the holder of such claim had recourse against the debtor on account of such claim, whether or not such holder has such recourse unless:

(i) the class of which such claim is a part elects … application of paragraph (2) of this subsection; or

(ii) such holder does not have such recourse and such property is sold under section 363 of this title or is to be sold under the plan.

On appeal to the Ninth Circuit, the trustee of Seller's bankruptcy estate argued that the phrase "property of the estate" in Section 1111(b)(1)(A) refers to the property that existed at the time of filing the petition and that the bankruptcy court was required to fix his rights as of that date.

The Ninth Circuit rejected the Trustee's argument.The Ninth Circuit found that what must be determined as of the date of the filing of the petition is solely the amount of the claim.The Ninth Circuit reasoned that the plain language of Section 1111(b) mandates that it cannot apply if the lien does not exist.

The Court observed that under California law, the liens securing the Trustee's claim were extinguished following the judicial foreclosure sale.As a result, extending the protections of Section 1111(b) to the Trustee would allow the Trustee to assert a deficiency claim against the Debtors following the foreclosure sale, which would afford him more rights in bankruptcy than he would otherwise have under state law.

The Ninth Circuit then noted that the purpose of section 1111(b) is to put the Chapter 11 debtor who wishes to retain collateral property in the same position that a person who purchased property subject to a mortgage lien would face in the non-bankruptcy context.The Court explained that these purposes were not at issue in the Debtors' proceeding because the Debtors were not seeking to retain the collateral property.

The Court held that section 1111(b)'s requirement that a creditor hold a "claim secured by a lien on the property of the estate" means that if a creditor's claim, for any reason, ceases to be secured by a lien on property of the estate, the creditor can no longer transform a non-recourse claim into a recourse claim.

As a result, the Ninth Circuit held that section 1111(b) had no applicability to the Trustee's claim.

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Wednesday, May 10, 2017

The Supreme Court of the United States recently held that a state law penalizing merchants for charging a surcharge for credit card payments did not restrict the amount that a store could collect when a buyer paid by credit card (i.e., a regulation on conduct).

Instead, the Court held that the state statute regulated how sellers may communicate their prices, and was therefore a regulation on speech subject to First Amendment scrutiny.

As you may recall, in Dana's R.R. Supply v. AG, 807 F.3d 1235 (11th Cir. 2015), the U.S. Court of Appeals for the Eleventh Circuit held that a similar anti-surcharge statute was an unconstitutional restriction on commercial speech, because the pricing scheme sought to be employed was not misleading, the regulation did not advance any substantial state interest, and it was not narrowly tailored to meet constitutional scrutiny.

Accordingly, in this case, on remand the U.S. Court of Appeals for the Second Circuit may find that the state law at issue here is an unconstitutional content-based restriction on non-misleading commercial speech.

This case involves New York's anti-surcharge statue for credit card payments. When a customer makes a payment with a credit card, merchants are charged a processing fee by the card issuer. The petitioners were five New York merchants (collectively, "Merchants") who wanted to pass the processing fee along to their customers by employing different pricing for the use of a credit card, or by offering a discount for the use of cash.

As way of background, when credit cards were first introduced, contracts between card issuers and merchants barred merchants from charging credit card users higher prices than cash customers. Congress put a partial stop on this practice in the 1974 amendments to the Truth in Lending Act (TILA). The amendment prohibited card issuers from contractually preventing merchants from giving discounts to customers who paid cash. See § 306, 88 Sta. 1515. But, the amendment said nothing about credit card surcharges.

Subsequently, in 1976, another TILA amendment barred merchants from imposing surcharges on credit card payments. Act of Feb. 27, 1976, §3(c)(1), 90 Stat. 197. In 1981, Congress delineated the distinction between discounts and surcharges by defining "regular price" as the price the merchant's "tagged or posted" price. Cash Discount Act, § 102(a), 95 Stat. 144. Because a surcharge was defined as an increase from the regular price, there could be no credit card surcharge where regular price was the same as the amount charged to customers using credit cards. The effect of all this was that a merchant could violate the surcharge ban by posting a single price and then charging credit card users more than that posted price.

Congress allowed the federal surcharge bank to expire in 1984. However, the provision preventing credit card issuers from contractually barring discounts for cash remained. This caused several states, including New York, to enact their own surcharge bans. But, unlike the federal ban, New York's Anti-Surcharge Statute did not define the term "surcharge."

As you may recall, New York prohibits its merchants from "impos[ing] a surcharge on a [customer] who elects to use a credit card in lieu of payment by cash, check, or similar means" (the "Anti-Surcharge Statute"). N.Y. gen. Bus. Law. Ann. § 518 (2012). A merchant who violates the Anti-Surcharge Statute commits a misdemeanor and risks "a fine not to exceed five hundred dollars or a term of imprisonment up to one year, or both." Id.

The Merchants argued that New York's Anti-Surcharge Statute restricted their constitutional right to truthful commercial speech under the First Amendment.

The trial court ruled in favor of the Merchants. It held that the Anti-Surcharge Statute regulated speech and violated the First Amendment under the Supreme Court's commercial speech doctrine. See, e.g., Va. Stat Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 764-65 (1976) (the First Amendment provides limited protection for commercial speech based on society's "strong interest in the free flow of [truthful and legitimate] commercial information").

The U.S. Court of Appeals for the Second Circuit vacated the trial court's ruling with instructions to dismiss the Merchants' claims. In so ruling, the Second Circuit determined that the Anti-Surcharge Statute regulated conduct rather than speech, and therefore the Anti-Surcharge Statute did not violate the First Amendment.

The first issue before the Supreme Court of the United States was whether the Anti-Surcharge Statute prohibited a pricing scheme that provides a cash price and a different price for credit card customers, expressed either as a percentage surcharge or a dollars-and-cents additional amount.

The Second Circuit read "surcharge" in the Anti-Surcharge Statute to mean "an additional amount above the seller's regular price," and thus concluded that the statute prohibited sellers from posting a single sticker price and charging credit card customers an additional fee. The Supreme Court did not find any clear error in this interpretation, and also concluded that the Anti-Surcharge Statute bars the pricing regime that the Merchants wish to employ.

On the constitutional issue, the Second Circuit concluded that the Anti-Surcharge Statute posed no First Amendment problem because the law regulated conduct, not speech. The Second Circuit reached this conclusion with the premise that price controls regulate conduct alone.

However, the Supreme Court disagreed. According to the Supreme Court, the Anti-Surcharge Statute was not a typical price regulation, as it did not limit the amount that merchants can collect from a cash or credit card payer. Instead, the Supreme Court held, the statute regulates how sellers may communicate their prices.

Because the Anti-Surcharge Statute regulated speech, the Supreme Court held that the Second Circuit should have conducted an inquiry into whether the Anti-Surcharge Statute, as a speech regulation, survived First Amendment scrutiny.

Accordingly, the Supreme Court vacated the judgment and remanded for the Second Circuit to analyze New York's Anti-Surcharge Statute as a speech regulation.

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Monday, May 8, 2017

The Appellate Court of Illinois, First District, recently held that an allonge was "affixed" to the note for purposes of the Illinois Uniform Commercial Code ("UCC") when it was attached via paper clip.

The plaintiff note owner ("Assignee") filed a mortgage foreclosure action against the defendant borrower ("Borrower") seeking the foreclosure of a commercial property.

The Borrower filed a motion to dismiss for alleged lack of standing. The motion was denied in part and granted in part "as to failure to attached allonge between [Lender] and [Assignee]." The trial court order further noted that "plaintiff presented to court original of amended and restated promissory note, February 27, 2013 Allonge and July 25, 2013 Allonge," and "that July 25, 2013 Allonge does not have binder holes at top and neither allonge has staple holes or marks."

The Assignee subsequently filed an amended complaint, and the Borrower filed an answer and affirmative defenses of (1) lack of standing because the Assignee was allegedly a foreign LLC that does business in Illinois without being registered, (2) lack of standing because the allonge assigning the Note to Assignee was not affixed to the Note, and (3) the Assignee was barred from charging late fees based on a flat fee.

The Assignee filed its motion for summary judgment and motion for judgment of foreclosure and sale. On the day the Borrower's response was due, the Borrower filed a motion for extension of time to file a response, and a motion for additional discovery for discovery related to the relationship between the Assignee and its servicer and the transaction through which the Assignee acquired the Note.

The Borrower's motions were set for hearing on the same date as the Assignee's motion. At the hearing, the trial court granted the Assignee's motions, and denied the Borrower's motions.

The judicial sale was subsequently conducted and the Assignee was the highest bidder. The Assignee filed a motion to approve sale, which was set for hearing on October 14, 2015. On October 7, 2015, the Borrower's counsel filed a motion to withdraw, which was also set for hearing on October 14.

On December 2, 2015, the trial granted the Assignee's motion and entered and order approving sale, and granted the Borrower's counsel's motion to withdraw, giving the Borrower 21 days to seek new counsel.

On December 23, 2015, the Borrower's new counsel appeared and filed a motion to reconsider the December 2 orders, which motion was denied.

The Borrower appealed, arguing: (1) the trial court erred in granting summary judgment because its affirmative defenses remained pending and the trial court abused its discretion in denying its motion for discovery and for additional time to respond, and (2) the trial court erred in simultaneously confirming the judicial sale and granting the Borrower's counsel's motion to withdraw.

The Appellate Court first addressed the Borrower's argument that the trial court abused its discretion in denying the Borrower's motion for discovery. In examining the issue, the Court addressed the reasons the discovery was sought.

First, the Borrower argued it needed discovery on the relationship between the Assignee and its loan servicer to establish its affirmative defenses of failure to register as a business in Illinois.

Specifically, the Borrower sought oral testimony from an affiant for the Assignee's servicer who stated that the Assignee was a single purpose entity that does not transact business in Illinois. However, the Appellate Court noted that the Borrower's affidavits supporting the motion for discovery offered only a general belief and speculation as to what testimony would be disclosed rather than stating that "the material facts were known only to persons whose affidavits the affiant was unable to procure," as required under the rule.

Moreover, the Appellate Court noted that the Borrower "cited no authority that the holder of a mortgage is transacting business in Illinois, such that registration is required, in order to pursue a foreclosure action, nor that a loan servicer's actions separate from its work in the subject mortgage can be imputed to the holder." Thus, the Appellate Court affirmed the trial court's rulings denying additional discovery and granting summary judgment on the issue.

With respect to the discovery requests related to whether the Assignee was the holder of the Note, the Appellate Court noted that attaching the Note to the amended complaint was prima facie evidence that it was the holder. The Appellate Court further noted that the original Note was presented in open court in the trial court which resolved the issue, and that no additional discovery was necessary.

Still, the Appellate Court reviewed the merits of the Borrower's contention that an allonge cannot be properly "affixed" by paperclip. In deciding the issue, the Appellate Court first noted that no Illinois case had determined what "affixed" meant under the Illinois UCC, and the statute did not define the term.

After analyzing case law from other jurisdictions, the Appellate Court ultimately held that "[t]he statute does not limit the language of affix to only permanent forms of attaching." Thus, the Appellate Court held, using "a paper clip is sufficient to satisfy the requirement of affixing an allonge to an instrument under [the UCC]." The Appellate Court therefore affirmed the ruling of the trial court.

With respect to the Borrower's contention that the trial court should have granted it additional time to respond to the motion for summary judgment, the Appellate Court disagreed, holding that the Borrower "had a significant period of time to engage in discovery and respond to plaintiff's motion for summary judgment, but failed to take timely action." Moreover, the Appellate Court noted that the Borrower never asserted a material fact to preclude summary judgment. The Appellate Court therefore affirmed the ruling of the trial court.

Finally, the Borrower argued that the trial court erred by entering the order confirming the foreclosure sale without first giving the Borrower 21 days to secure new counsel. The Appellate Court disagreed, first noting that the Borrower did not cite any authority indicating that the trial court was required to rule on motions in any specific order.

Moreover, the Appellate Court ruled that "even if the trial court erred in granting the motion to confirm the sale without allowing a 21-day continuance, [the Borrower] [did] not set forth any claim of how it was prejudiced."

Accordingly, the Appellate Court affirmed the rulings of the trial court in favor of the Assignee and against the Borrower.

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Sunday, May 7, 2017

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the dismissal of a mortgage loan borrower's federal Fair Debt Collection Practices Act (FDCPA) and related state law claims because the defendant mortgagee was not a "debt collector" as defined by the FDCPA.

In so ruling, the Court also rejected the borrower's allegations that the monthly statements the mortgagee sent to the borrower after her bankruptcy discharge were impermissible implied assertions of a right to collect against her personally.

The borrower obtained a mortgage loan and home equity line of credit from a lender, both of which were secured by her primary residence. Five years later, the borrower filed for Chapter 7 bankruptcy and received a discharge.

After the borrower's discharge, the lender continued to send the borrower monthly statements concerning the status of the loans.

The borrower filed a putative class action lawsuit alleging violations of the FDCPA, the Florida Consumer Collection Practices Act (FCCPA), the Florida Unfair and Deceptive Trade Practices Act, and for common law conversion, fraudulent inducement, and negligent misrepresentation.

The lender filed a motion to dismiss arguing that did not meet the FDCPA's definition of "debt collector" and that the borrower had failed to state claims under state law. The lender filed a second a motion to refer the case to the bankruptcy court because the borrower's claims rested on a purported underlying violation of the bankruptcy injunction emanating from the bankruptcy discharge and that the Bankruptcy Code pre-empted the state law claims.

The trial court granted the motion to dismiss the FDCPA claim and found the state law claims pre-empted. The trial court also granted the motion to refer the matter of the purported bankruptcy injunction violation to the bankruptcy court. The borrower appealed, but this first appeal was dismissed as not appealable.

The parties appeared before the bankruptcy court, but because neither party was actually arguing that a violation of the bankruptcy injunction had occurred, the case was returned to the trial court where the state law claims were dismissed for failure to state a claim. The borrower then appealed.

On appeal, the Eleventh Circuit found that the lender did not qualify as a "debt collector" as defined by the FDCPA because it had originated the loans and thus was "creditor" under the FDCPA and that the FDCPA did not apply to it.

However, as you may recall, and unlike the FDCPA, the FCCPA applies to anyone who attempts to collect a consumer debt such that the lender ostensibly fell under the FCCPA's prohibition against threatening to enforce a debt when that person knows it is not legitimate or to assert the existence of a legal right when the person knows that right does not exist.

Even an implied threat can be a violation of the FCCPA, although it is considered from the perspective of the "least sophisticated consumer" who "possess[es] a rudimentary amount of information about the word and willingness to read a collection notice with some care."

The borrower based her state law FCCPA claim on the assertion that the lender's monthly statements sent to her after her bankruptcy discharge were implied assertions of a right to collect against her personally and that the lender knew it had no such right because of the discharge. The lender countered that the monthly statements were sent under its right under 11 U.S.C. § 524(j)(3) to seek "periodic payments associated with a valid security interest in lieu of pursuit of in rem relief to enforce the lien" and that a least sophisticated consumer would not be misled by the monthly statements.

The Eleventh Circuit held that even the least sophisticated consumer would not believe that the lender was seeking to collect against the borrower personally based on receipt of the monthly statements because the borrower's bankruptcy discharge plainly stated that collection of her debt was prohibited but that a creditor may have the right to enforce a valid lien such as a mortgage if it had not been eliminated or avoided. The Court noted that this discharge statement is consistent with a mortgage creditor's right to seek payment under 11 U.S.C. § 524(j).

The Eleventh Circuit also pointed out that the lender's monthly statements plainly informed the borrower, and would also have informed the least sophisticated consumer, that she was not personally liable for the debt but that the lender could foreclose if the monthly payments were not made.

The Court pointed out that under some circumstances an insufficient bankruptcy disclaimer in monthly statements could allow the monthly statements to be considered an attempt to collect a debt, but here it was not.

The Eleventh Circuit refused to engage in a strained reading of the bankruptcy disclaimer language and pointed out that the borrower's basic knowledge that she had been through the bankruptcy process, had received a discharge, had no personal liability on the mortgage, and that the lender could still foreclose on the property, provided enough information for her to understand the meaning of the bankruptcy disclaimer.

The Appellate Court thus rejected as "bizarre or idiosyncratic" the borrower's interpretation of the bankruptcy disclaimer in the lender's monthly statement as ambiguous and unable to "override a series of clear and unambiguous communications to the contrary."

Accordingly, the Eleventh Circuit affirmed the dismissal of the FCCPA and other state law claims, as well as the dismissal of the FDCPA claim.

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PLEASE NOTE:

The editor and sponsoring law firm of this blog represent and serve banks, lenders, loan buyers, loan servicers, debt collectors, and other financial services companies. We do not represent consumers.

Please note that any communications or information obtained may be provided to our clients, including for the purpose of debt collection.

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Ralph Wutscher's practice focuses primarily on representing depository and non-depository mortgage lenders and servicers, as well as mortgage loan investors, distressed asset buyers and sellers, loss mitigation companies, automobile and other personal property secured lenders and finance companies, credit card and other unsecured lenders, and other consumer financial services providers. He represents the consumer lending industry as a litigator, and as regulatory compliance counsel.

Ralph has substantial experience in defending private consumer finance lawsuits, including cases ranging from large interstate putative class actions to localized single-asset cases, as well as in responding to regulatory investigations and other governmental proceedings. His litigation successes include not only victories at the trial court level, but also on appeal, and in various jurisdictions. He has successfully defended numerous putative class actions asserting violations of a wide range of federal and state consumer protection statutes. He is frequently consulted to assist other law firms in developing or improving litigation strategies in cases filed around the country.

Ralph also has substantial experience in counseling clients regarding their compliance with federal laws, and with state and local laws primarily of the Midwestern United States. For example, he regularly provides assistance in connection with portfolio or program audits, consumer lending disclosure issues, the design and implementation of marketing and advertising campaigns, licensing and reporting issues, compliance with usury laws and other limitations on pricing, compliance with state and local “predatory lending” laws, drafting or obtaining opinion letters on a single- or multi-state basis, interstate branching and loan production office licensing, evaluations and modifications of new or existing products and procedures, debt collection and servicing practices, proper methods of responding to consumer inquiries and furnishing consumer information, as well as proposed or existing arrangements with settlement service providers and other vendors, and the implementation of procedural or other operational changes following developments in the law.

Ralph is a member of the Governing Committee of the Conference on Consumer Finance Law. He is also the immediate past Chair of the Preemption and Federalism Subcommittee for the ABA's Consumer Financial Services Committee. He served on the Law Committee for the former National Home Equity Mortgage Association, and completed two terms as Co-Chair of the Consumer Credit Committee of the Chicago Bar Association.

Ralph received his Juris Doctor from the University of Illinois College of Law, and his undergraduate degree from the University of California at Los Angeles (UCLA). He is a member of the national Mortgage Bankers Association, the American Bankers Association, the Conference on Consumer Finance Law, DBA International, the ACA International Members Attorney Program, as well as the American and Chicago Bar Associations.

Ralph is admitted to practice in Illinois, as well as in the United States Court of Appeals for the Seventh Circuit, the United States District Courts for the Northern and Southern Districts of Illinois, and the United States District Court for the Eastern District of Wisconsin, and has been admitted pro hac vice in various jurisdictions around the country.